Remedying FAPE Violations During Distance Learning with Compensatory Education

By: Toni Blanchard

January 25, 2022

Even prior to the COVID-19 pandemic, students with disabilities lagged behind their non-disabled peers academically. Since the pandemic, prolonged learning disruptions have exacerbated these inequities, turning opportunity gaps into chasms and presenting new challenges for parents, educators, and disabled students. The Individuals with Disabilities Education Act (“IDEA”) requires that children with disabilities receive a free and appropriate public education (“FAPE”). According to the IDEA, school staff evaluate the child and provide them with an Individualized Education Program (“IEP”), which outlines services “reasonably calculated to enable [the] child to make progress appropriate in light of [their] circumstances.” However, the IDEA and its implementing regulations provide no guidance on facilitating special education services outside the classroom, which unfortunately made it difficult for school districts to follow a student’s IEP during distance learning.

While the Department of Education recognized that schools may not be able to provide all the specialized instruction and services during distance learning in the same way they would in a traditional classroom setting, it offered no clear direction for school districts on how to implement IEPs in a remote environment. Some states tried to adapt IEPs to a virtual setting by creating “individualized distance learning plans” to outline how schools and families should work together. However, financial constraints and personnel shortages limited the ability of educators and school districts to apply IEPs remotely. In addition to remote learning, many school districts shortened their school day, which inevitability cut the hours of specialized instruction a student received. For example, where a student’s IEP called for 4 hours of individualized special education instruction per day, but the school day was less than 4 hours, that student did not receive the full 4 hours of individualized instruction. Similarly, the challenge of conducting rehabilitative services remotely, including occupational therapy, physical therapy, and speech therapy, led to a disruption and in some cases a denial of services altogether.

Regardless of the pandemic and difficulty of implementing IEPs during school closures, children with disabilities were still entitled to FAPE, which made school districts vulnerable to lawsuits. One federal lawsuit accused NYC and thousands of school districts of “defrauding special needs students by depriving them of hands-on therapies during the pandemic” while collecting federal subsidies for these therapies that were substituted with remote services. Other lawsuits mandated that school districts provide students with compensatory education, which is an equitable remedy granted by the courts and administrative hearing officers when a school district fails to provide a student with required IEP services.

While school districts are not to blame for the tremendous losses during school closures, they are responsible for returning students to the place they would have been if schools had remained opened. For example, a Texas hearing officer ordered a school district to provide a student with compensatory speech therapy and reimbursement for tutoring services after the district failed to implement the student’s IEP during 2020 school closures. Similarly, in California, an Administrative Law Judge ordered a Los Angeles school district to provide 40 hours of postsecondary transition counseling and 1 hour of group speech and language therapy after finding that a student received only 45 percent of the total instruction outlined in their IEP during distance learning.

The Department of Education recommends that school districts proactively evaluate whether compensatory services are necessary for a student once they become aware of any failure to fulfill the student’s IEP. This individualized determination considers the child’s academic achievement and functional performance, rate of progress toward IEP goals, and the frequency and duration of previous specialized instruction and services prior to the pandemic disruptions. Although a student’s right to FAPE and eligibility for educational services concludes during the school year in which the student turns twenty-one, many states enacted legislation supporting continued compensatory education beyond a student’s twenty-first birthday to remedy IDEA violations during school closures. A New York statute signed in June 2021 by former Governor Cuomo permits school districts to continue providing services to students until they “complete” their IEP goals or turn twenty-three, whichever comes first. Similarly, in New Jersey, Governor Murphy signed legislation allowing students a one-year extension of special education and related services if they will exceed the age of eligibility in the 2020-2021, 2021-2022, or 2022-2023 school year and if the student’s IEP team determines compensatory education to be necessary.

However, compensatory education requires sufficient teachers and support staff to facilitate learning recovery. Unfortunately, the teacher shortages and insufficient staffing predating the pandemic have increased greatly since 2020. According to one report, a third of districts throughout the country saw a significantly higher number of retirements and resignations in the fall of 2020 than in the year before the pandemic. Many school districts expect their current staff to manage existing caseloads and have no plans to hire more reading, speech, or occupational specialists to support students’ learning recovery plans. Moreover, a shortage in special education teachers has resulted in districts hiring staff without requisite credentials, such that students with the most need may have the least qualified teachers. Sustained investments in the educator pipeline to reverse the teacher shortage crisis, particularly the lack of fully certified special education teachers, will be critical to supporting learning recovery plans implemented through compensatory education.

The COVID-19 pandemic will have far-reaching consequences on students, teachers, and school systems overall. While the pandemic has increased educational disparities and achievement gaps, it has also brought necessary awareness to the lack of adequate funding, teachers, and support staff to fulfill the learning needs of disabled students. Evaluating students for compensatory education eligibility and implementing these plans may be a lengthy process and particularly challenging while the pandemic is still ongoing. Nevertheless, state legislation extending IDEA eligibility and services is a crucial step toward compensating for past IDEA violations and ensuring students with disabilities receive equity, opportunity, and the continued right to free and appropriate public education.

Toni Blanchard, J.D. Class of 2022, New York University School of Law

Suggested Citation: Toni Blanchard, Remedying FAPE Violations During Distance Learning with Compensatory Education, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2022).